Federal regulators have quietly put in place new, stricter enforcement measures for nursing homes that struggle to meet infection control and vaccine immunization requirements for residents and staff.
Changes effective immediately include the threat of increased civil money penalties, a shortened time period for facilities to demonstrate compliance prior to the effectuation of discretionary denial of payment for new admissions remedy, and stronger directed plans of correction.
The Centers for Medicare & Medicaid Services on Thursday revoked its 2020 “Enhanced Enforcement for Infection Control Deficiencies” guidance, issued early in the pandemic, and replaced it with revised guidance titled, “Strengthened Enhanced Enforcement for Infection Control Deficiencies.” The agency said its goal was to “target facilities with or at risk for the most significant negative resident health outcomes by taking more aggressive enforcement actions.”
“The enhanced enforcement actions are more stringent for infection control deficiencies that result in actual harm or immediate jeopardy to residents,” CMS wrote in its memo to surveyors. “In addition, the criteria for enhanced enforcement on infection control deficiencies that result in no resident harm has been expanded to include enforcement on noncompliance with Infection Prevention and Control (F880) combined with COVID-19 Vaccine Immunization Requirements for Residents and Staff (F887).”
The new rules, accompanied by a targeted Quality Improvement Organization effort focusing on “low-performing nursing homes,” are intended to help more facilities establish strong infection control and surveillance programs and achieve vaccine education compliance, CMS said. But they may not be perceived that way by overburdened providers.
“More strict penalties and fines hardly seem to be the correct way to assist providers to learn better infection control practices or regain substantial compliance in the event of a citation,” said Roseanne Benbow, RN, owner and lead consultant for Leading Transitions Post Acute Care Consultation and Staffing. “Providers that are struggling in these areas need support and education.”
Still, the changes send a strong message as the nation’s nursing homes prepare for the end of the COVID public health emergency.
“By adding enforcement actions to facilities who are cited with both F880 and F887 at lower scope and severity levels, CMS has reinforced that facilities are still expected to continue to follow standards of practice related to Infection Prevention and Control and continue to follow established policy and procedures regarding COVID vaccination, even in the absence of the public health emergency,” said Shelly Maffia, MSN, director of regulatory services for Proactive LTC Consulting.
Penalties outlined
CMS said enhanced enforcement will be applied to higher-level infection control deficiencies that cause harm, serious harm or the likelihood of serious harm.
“Additionally, enforcement actions will be imposed on facilities when they are concurrently cited for noncompliance with Infection Control (F880) and COVID-19 Vaccine Immunization Requirements for Residents and Staff (F887) at a level that causes no actual harm, but with the potential for more than minimal harm to residents.”
CMS noted that its prior enhanced enforcement policy was implemented prior to the availability of COVID vaccines, which the agency views as the “strongest tool against COVID-19.”
“We believe a facility’s failure to educate about and offer the COVID19 vaccine to vulnerable, high-risk nursing home residents or resident representatives and staff, combined with improper infection control and prevention practices, increases a resident’s risk for poorer outcomes,” the memo said.
For all survey cycle dates starting March 30 or later, non-compliance with both F880 and F887 cited at scope and severity Level 2 (including D, E and F for no actual harm with potential for more than minimal harm) will lead to:
- A directed plan of correction that includes root cause analyses working with a Quality Improvement Organization or qualified consultant
- Discretionary denial of payment for new admissions with a 30-day notice period to achieve substantial compliance.
The steepest penalties are reserved for non-compliance for F880 at scope and severity Level 4 (including J, K and L for Immediate Jeopardy). Those cited face:
- A directed plan of correction that includes root cause analyses and working with a Quality Improvement Organization or hiring an Infection Control Consultant to develop and implement a corrective action plan
- Discretionary denial of payment for new admissions with a 15-day notice period to achieve substantial compliance
- Civil Money Penalty imposed with a 20% increase to the CMP Analytic Tool
Maffia said the shortened compliance period before denial of payments goes into effect “reinforces CMS’ expectation that facilities implement appropriate Infection Prevention and Control practices to help protect residents and staff by preventing and stopping the spread of infections, regardless of the presence of COVID-19 cases.”
3,000 nursing homes targeted
In addition to the new penalties, CMS revealed that it is deploying its Quality Improvement Organizations to provide targeted technical assistance for some 3,000 low-performing nursing homes “with a history of infection control challenges.”
As part of their ongoing pandemic work, the QIOs have been providing direct assistance to about 6,000 small, rural nursing homes and those serving vulnerable populations in areas where access to care is limited, CMS said. The emphasis has been on meeting CMS and CDC reporting requirements, sharing best practices related to infection control and improving testing and patient transfers.
Benbow suggested that CMS could proactively request QIOs provide education to all SNFs with recent citations, not just the 3000 low performers. She recommended providers reach out to their closest QIO or use other third-party, pre-survey services to ensure compliance.
“The QIOs are free, so that is a low cost way of having your programs reviewed,” she said. “It always looks nice to CMS and other governing agencies to see you are using the resources available.”
Under the latest guidance, states may also request QIO technical assistance specifically targeted to nursing homes that have experienced an infectious disease outbreak. In addition to establishing a strong infection control and surveillance program and training staff, the QIOs will monitor compliance with infection control standards and practices.
